Fitzmaurice v. Chase

• Decision Date: 15 November 2001
• Docket Number: 88621,3
• Parties: DONNA J. FITZMAURICE, Appellant, v JANICE L. CHASE et al., Respondents. 88621 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

DONNA J. FITZMAURICE, Appellant v JANICE L. CHASE et al., Respondents

88621

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: September 14, 2001

Decided and Entered: November 15, 2001

Seymour Fox P.C. (Bonnie P. Chavin of counsel), Troy, for appellant.

O'Connor, Yoquinto & Ryan L.L.P. (William D. Yoquinto of counsel), Troy, for Charleen Simpson, respondent.

Law Offices of Mary A. Bjork (Carrie McLoughlin Noll of Pennock & Breedlove L.L.P., Clifton Park, of counsel), Albany, for Janice L. Chase and another, respondents.

MEMORANDUM AND ORDER

Before: Crew III, J.P., Peters, Spain, Carpinello and Rose, JJ.

Spain, J.

Appeal from an order of the Supreme Court (Ceresia Jr., J.), entered September 18, 2000 in Rensselaer County, which granted defendants' motions for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in an October 1996 motor vehicle accident in the City of Troy, Rensselaer County. At the time of the accident, plaintiff was a passenger in a car driven by her niece, defendant Charleen Simpson, when it was struck by a truck driven by defendant Janice L. Chase and owned by defendant William J. Chase. Following joinder of issue and discovery, Simpson moved for summary judgment dismissing the complaint against her alleging that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). The Chases cross-moved for the same relief. Supreme Court granted defendants' motions and dismissed the complaint. Plaintiff appeals arguing, as limited by her brief, that Supreme Court erred in granting summary judgment in favor of defendants because issues of fact were raised as to whether she sustained a medically determined head injury that prevented her from performing substantially all of her daily activities for 90 of the 180 days following the accident. We reject plaintiff's argument and, therefore, affirm.

It is well settled that the proponent of a motion for summary judgment under the no-fault statute must submit admissible evidence demonstrating that a plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 N.Y.2d 955; Barbarulo v Allery, 271 A.D.2d 897, 898; Bushman v Di Carlo, 268 A.D.2d 920, 921-922, lv denied 94 N.Y.2d 764). In support of her motion, Simpson submitted plaintiff's medical records and the affidavit of a Board- certified neurologist who reviewed the records and conducted an independent neurological examination of plaintiff. The medical records indicate that following the accident, plaintiff was taken to the emergency room where she was diagnosed with a head contusion, given Tylenol and released. She was subsequently examined by her primary care physician after presenting with symptoms of headache and slight neck pain and was advised to stay out of work for one week. A CAT scan of her head revealed no injury. Plaintiff was then referred to a neurologist who examined her in December 1996, April 1997 and March 1998 and ordered an MRI of plaintiff's head, the results of which were unremarkable. Inasmuch as plaintiff continued to complain of double vision, the neurologist referred her to a neuro-ophthalmologist who diagnosed sinusitis and conjunctivitis. There is no indication in the record that plaintiff has sought any further treatment for this injury since her March 1998 visit to her neurologist.

In his affidavit, Simpson's expert neurologist opined, based upon his examination of plaintiff and a review of her medical records, that there were no objective findings to support plaintiff's claim that she suffered from a neurological injury and that any head injury sustained in the accident was trivial. Specifically, he asserted that plaintiff's claimed inability to remember things was inconsistent and incredible and that her complaint of double vision was unrelated to the accident inasmuch as it would have been evident immediately after the accident, not a week...